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Tuesday, August 09, 2011

Synchronicity in Trademark Applications in China: from a first-to-file to a first-to-use to a divination system

"Let's not look at the timekeeping equipment, let's draw lots"

There is a theory of synchronicity of cultural artifacts. For example pyramids being build both in Egypt and in Middle and South America around the same time, or the simultaneous creation of the cartoon figure Dennis the Menace in the US and Dennis the Menace in the UK. As if certain ideas are floating in the air at certain times. Synchronicity can happen when two people independently want to register the same trademark for use of the same or similar good or service in China and apply on the same day. So in order not to confuse the public the Chinese trademark law allows only one to register. Although China has a first-to-file system, they devised a system whereby each trademark applicant have thirty days to come up with evidence of first use. If they start using the mark on the same day or have not started using it, they have 30 days to consult each other and come with a solution by themselves. If that does not work, the Trademark Office will demand that the trademark applicants draw lots. If a trademark applicant does not participate in the drawing of a lot, he will be deemed to have abandoned his trademark application, so that there is only one applicant left. Waterproof solution. But wait, is on the same day not a very crude way to register the time of arrival? Why not put a stamp with the exact time of arrival, including seconds, of the trademark application? Then in all probability, the consultation and drawing lots fanfare will not be necessary.

Shi Xinzhang analyses for China Intellectual Property 中國知識產權 the current system and recommends to separate the requirement and examination procedures. Shi does not seem to mind the doctrinal awkwardness of a first-to-file system that turns to first-to-use, let alone drawing lots. Read here.